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People have mannerisms. They wring their hands, fidget, and look away when answering, sweat, and do all sorts of other things. If the witness tends to do things that are extreme, they may need to be the subject of training. If the mannerisms are not extreme, I tend to leave them alone.

After all, the witness is human, not an automaton. Sometimes the mannerisms may be taken by a jury or arbitrator as an indication of a tendency to evade or to be less than truthful.

In your final summation it is useful to address the issue of credibility -- how does one tell whether to believe a witness? When someone wrings his hands or looks down into his lap when speaking, he may be doing that because he is a liar, or he may be doing that because his is simply nervous and apprehensive about being a witness in a public forum or hearing.

The person who looks at the ceiling and waits to answer may be concocting perjury or simply concerned that what he is about to say is correct. You can't tell which it is from the fact that he does that.

So that may not be a reliable indicator of truthfulness.

The person who looks you straight in the eye and speaks to you as though you were social acquaintances may be doing so because he is telling the truth or because he is simply brazen in his mendacity.

That is, therefore, also not a reliable indicator of truthfulness.

It is the same for practically every personal tic.

But there is one very reliable extrinsic corroborator of truthfulness.

Do the records and documents that were created at the time the events occurred, when there was not yet any dispute, when there was no motive to impress any judge or jury, agree with the witness' testimony or contradict it? That is the best test of witness reliability.

Is he telling you now what he was telling his associates when all this was happening. Do the contemporaneous company memoranda confirm what the witness has said? If he one story then and is telling a contrary story now, one of them is probably false.

The more reliable statement of facts is the one made when no judge or jury was looking. That part of your summation takes ten seconds to make and is worth its weight in gold.

No matter what you do, things simply do not always work out as you hope.

Litigation is a very inexact process in which emotions and biases and expectations do not always combine in harmonious, symphonic works of artistic grandeur. It is not as bad as trying to predict the weather -- that is pure chaos theory.

But there are many dependent variables in litigation, and risk expands exponentially with the number of dependent variables.

The dependence upon third party witnesses is one very critical element to case evaluation.

You can't have access to third party witnesses the way you have access to your own client's employees. If the third party witnesses are your client's customers, there is serious concern about lost business as an overlay to the concern to optimize the quality of evidence.

I have seen a subpoena for records end serious, long-term business relationships because it was ineptly handled. If the third party witnesses are competitors of your client, another layer of risk is added. And the story gets worse as it gets longer.

This tutorial is about preparing witnesses to whom you have essentially congenial access. It focuses upon a small, albeit important aspect of dispute resolution. It does not pretend to account for the overall risks of civil confrontation. That is another tutorial entirely.

 

Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits. 

(This is Part 6 of 6 on How to Win Franchise Trials. Here is Part 1)

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Mediation is the previous category.

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